Telehealth Enforcement 

Increasing Scrutiny, Audit, and Enforcement of Telehealth Services

C.J. Wolf, MD provides enforcement action summaries for the YouCompli blog. These summaries provide real-world examples of regulators’ response to practices that don’t fully comply with regulations. This month’s article looks at telehealth actions.   

The COVID-19 pandemic opened the door to greater use of telehealth services, and healthcare providers and consumers walked through it. In fact, Medicare beneficiaries used telehealth to receive 12 percent of their services during the first year of the pandemic. That’s according to the Office of the Inspector General (OIG), which recently added telehealth services reviews to its Work Plan.   

An initial report from the OIG also notes that, “over 28 million Medicare beneficiaries used telehealth during the first year of the pandemic. This was more than two in five Medicare beneficiaries. In total, beneficiaries used 88 times more telehealth services during the first year of the pandemic than they used in the prior year.” (Related: Telehealth evolution: Supporting patients with virtual care). 

When there is this significant increase in a particular type of service, we expect to see an increase in scrutiny, audits, and enforcement. Here are some recent examples and suggestions to prepare for telehealth services. 

Medically unnecessary telehealth services 

Recently, a Florida medical practice paid $24.5 million to resolve allegations that it violated the False Claims Act. One of the significant allegations in the case was performing medically unnecessary telehealth services during the COVID-19 pandemic.  Recall that at the beginning of the pandemic most non-urgent and/or elective medical procedures were cancelled.  In Florida, the governor ordered a pause on all nonemergency medical procedures effective March 20, 2020.  Allegedly, the medical practice instructed providers to begin seeing patients by telemedicine twice a month and to subsequently bill for evaluation and management (E/M) services. The increased number of E/M telemedicine visits was designed to make up for lost revenue from the cancellation of elective interventional pain procedures. The United States and State of Florida contend that the practice’s physicians subsequently scheduled appointments every two weeks regardless of patient need. This resulted in increased billings and revenue that were not medically necessary.  Prior to the pandemic, the practice would usually see these patients once a month as opposed to twice a month. 

Key Point for Compliance Professionals:  Medical necessity is the overarching criterion for the performance and billing of any service.  If the service was not medically necessary, it should not be billed.  Reviewing telehealth services for medical necessity often requires a trained auditor with medical education and expertise. 

National fraud takedown: $1.1 billion in false and fraudulent telehealth claims 

In Fall 2021, the U.S. Department of Justice (DOJ) announced a national health care fraud enforcement action involving over $1.4 billion in alleged losses.  This announcement included nationwide criminal charges against 138 defendants, including 42 doctors, nurses, and other licensed medical professionals. Of the $1.4 billion alleged losses, telemedicine related fraud accounted for the vast majority at $1.1 billion. 

According to court documents, some of the allegations included telemedicine executives paying doctors and nurse practitioners to order unnecessary treatments. They may have had no patient interaction or only a brief telephonic conversation with patients they had never met or seen. The treatments included durable medical equipment, genetic and other diagnostic testing, and pain medications. The medical equipment companies, laboratories, and pharmacies purchased those orders in exchange for kickbacks. They submitted over $1.1 billion in false and fraudulent claims to Medicare and other government insurers. In some cases, medical professionals billed Medicare for sham telehealth consultations that did not occur as represented. 

Key Point for Compliance Professionals: Make sure all telemedicine services are appropriately documented and that the documentation supports actual patient encounters between the health care professional and the patient. 

OIG plans future scrutiny and enforcement 

The COVID-19 pandemic introduced significant volumes of telehealth services, made possible by looser regulation during the Public Health Emergency (PHE). This allowed providers to safely evaluate patients and minimize the threat of spreading the virus.  However, once the PHE declarations end, there will be a return to more strict telehealth requirements.   

For example, OIG plans additional oversight activity in the area of telehealth.  Because of telehealth’s changing role, OIG will conduct a series of audits of Medicare Part B telehealth services in two phases.

The phase one audits will focus on making an early assessment of whether services meet Medicare requirements, such as 
  •  evaluation and management 
  • opioid use disorder 
  •  end-stage renal disease 
  • psychotherapy   
Phase two audits will include  
  • Additional audits of Medicare Part B telehealth services related to distant and originating site locations 
  • Virtual check-in services 
  • Electronic visits 
  • Remote patient monitoring 
  • Telehealth technology 
  • Annual wellness visits  

These audits will also focus on determining whether Medicare requirements were met.  

Telehealth should be assessed in compliance programs’ risk assessment processes.  Compliance programs should proactively plan auditing and monitoring of their organization’s telehealth services, especially as regulations will tighten once again after the PHE. Check out this post on some of the specific regulations to watch: Is telehealth getting a new lease on life?

Subscribe so you don’t miss any articles from C.J. Wolf about healthcare enforcement actions from OIG.

Get a personal tour of YouCompli.